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Wednesday, August 23, 2006

How should states construct the criminal history of migrant offenders?

In addition to being a delinquent blogger of late, I have tried to use the summer to, among other things, write a few responses to other scholars' work, which I hope to float here over the next few weeks.  Today, I'd like to get readers' thoughts on a draft of a short piece I wrote in response to my friend and future colleague (for spring 07 at least) Wayne Logan's great article from this past year. The Response is coming out next month in the Penn Law Review as part of their online forum that they'll launch around September 1.  Here's a rough draft of the paper, which includes footnotes. Currently standing at only ten pages, the piece is tentatively entitled Connectedness and its Discontents: A Response to Professor Logan.  (Anyone got a better short title?)  Here's the intro. The rest is after the jump.

Please send comments to markel at post.harvard.edu, or in the comments space.

I.

Connectedness is actually a quandary. Often assumed to be a better state of affairs than being disconnected, the state of connectedness upon closer scrutiny is not necessarily voluntary or desirable. Indeed, when E.M. Forster chose “Only Connect” as an epigraph to his novel, Howards End, he surely wasn’t thinking – it is safe to say – of the kind of connectedness among polities that Professor Wayne Logan describes in his rich, measured, and illuminating article. This should come as no surprise. Forster was exalting the weightless energy of passionate encounter. Logan’s research, by contrast, reveals the potential gloominess of connectedness.

By focusing on the legal implications of the migratory patterns of criminal offenders, Logan’s article asks two important questions that have been given spare and insufficient attention. The first focuses on how states construct the criminal histories of the offenders who are now in their midst. The second asks what tradeoffs are implicated as states make their choices regarding how to interpret the pasts of these itinerant offenders as they relate to registration requirements or sentence enhancements for recidivism.

Answering the first question, Logan observes the existence of two archetypal approaches a state might adopt when assessing an offender’s prior record: an internal one and an external one. Under the internal approach, the use of “out-of-state convictions, and any punishment resulting from those convictions, [must] satisfy the eligibility requirements of the forum state's registration or recidivist enhancement law.” On this view, for example, a state would not apply a recidivist sentencing enhancement to an offender on the basis of a conviction in another state for conduct that would not be illegal in the forum state. By contrast, under the external approach, a forum state faithfully implements the consequences of the legal judgments of its fellow sovereign states, rather than re-examining those determinations to see if the underlying circumstances (or length of sentence) would have initiated the same legal consequences in the forum state. Consequently, with the external approach, an offender’s former actions potentially trigger a “marked trail” effect in the new forum state. Of course, jurisdictions need not be consistent between recidivism and registration requirements: some states might adopt, for instance, an internal approach with respect to recidivist sentencing enhancements but an external approach to sex offender registration laws.

With respect to the second question, Logan capably shows how the competing internal and external approaches raise difficult theoretical and practical policy questions. Indeed, simply by ventilating the various issues as he does, Logan helpfully foregrounds a lot of otherwise easily obscured value tradeoffs, and thus makes a profound contribution to the study of federalism and American criminal law.

This Response registers no real quarrel with Logan’s analytic account about the scope and nature of criminal justice connectedness. My focus instead is on the normative argument in Logan’s apparent preference for the internal approach. I choose this focus not because I’m convinced that the external approach is the obviously superior one. Rather, I think Logan overestimates its deficiencies. The goal of this Response, then, is simply to adumbrate a few of the rejoinders available in defense of the external approach against Logan’s criticisms. To the extent these responsive arguments are persuasive, then state courts and/or legislatures will be in a better-informed position to select an approach more consonant with their particular concerns and objectives.

II.

As alluded to above, Logan ultimately sides with the internal approach. This might seem odd as Logan himself recognizes several distinct advantages to the external approach. First, at least as compared to the internal approach, the external approach advances judicial economy, sparing courts the task and expense of comparing whether the predicate conduct would satisfy the forum state’s eligibility requirements for offender registration laws or sentence enhancements. Second, by serving judicial economy, the external approach is capable of serving distributive justice goals as well, since a dollar saved in administrative costs is a dollar available for helping other social projects. Third, by giving effect to the prior judicial decisions and legislative determinations of the foreign states, the external approach instantiates comity among the several states, evidencing respect for the equal dignity of the states. Fourth, the external approach is often the better vehicle for providing notice to a migrating offender; under the external approach, for example, the offender need only know one set of laws regarding registration requirements—those of the state in which he committed the offense. If states employ an internal approach, then migrant offenders will have greater difficulty in keeping abreast of whether they are expected to register or not. Fifth and finally, in the expressive political economy of punishment discourse, the external approach is more likely to reinforce norms of individual responsibility and accountability, since the external approach signals, as President Clinton said, that if you break the law, “the law will follow you wherever you go--state to state, town to town.” In other words, if you had to register in Alabama as a consequence of some crime you committed there, you won’t be able to escape those registration requirements simply by moving to a different state, where the same underlying conduct would have been perfectly legal.

Despite the variegated benefits of the external approach, Logan condemns the external approach for four reasons: its harshness, its creation of inequalities, its denigration of state autonomy, and, relatedly, its discouragement of jurisdictional competition for citizen migration. In what follows, I explain why these charges are overstated or misplaced.

A. Is the External Approach Unduly Harsh?

To begin with, Logan notes that an embrace of the external approach can lead to the imposition of ever-more onerous registration requirements or sentence enhancements based on weird predicate crimes or harsh procedural sorting rules that are extant in the several states. It may be true that, on the margins, the external approach leads to more harm to defendants. But Logan’s article doesn’t furnish us with enough evidence to believe that is conclusively the case, as there are a variety of circumstances in which the internal approach may lead to worse outcomes for migrant offenders. For example, forum states may have a lower bar for registration requirements than foreign states; thus, out of state conduct that may be deemed relatively benign in the foreign state may prompt severe consequences once the migrant offender moves to the forum state. Indeed, as Logan himself notes, the external approach would lead to better circumstances for offenders on those occasions where “a crime classified as a misdemeanor in a foreign state can be treated by the forum as a felony for purposes of assessing recidivism, or the foreign state would not count deferred or probated adjudications, or a nolo contendere plea, or a prior juvenile disposition.”

Even if it could be shown that the external approach is a net detriment to defendants because it tends to widen the scope of penality, this is not always bad. For one thing, take note that the democratic weirdness of federalism’s fifty labs approach may cut in many directions. One need only imagine that the forum state adopts the internal approach and also fails to recognize the crime of marital rape, or refuses to impose higher penalties for racially-motivated assaults or driving under the influence. Shorter criminal codes (and sentences) are not inexorably better criminal codes (and sentences). Consequently, when offenders move to an internal approach jurisdiction, there is a decent chance that the resulting outcomes will offend progressive political sensibilities in the forum state, rather than reflect them. That’s because the criminal codes of foreign states may actually be serving retributive or other ends more effectively than those of forum states.

In this regard, by giving effect to the “marked trail” of an offender’s conduct through the external approach, a forum state may in fact be able to better conduct comparative experiments in crime policy than they otherwise would be able to perform. Of course, this would raise, albeit in a different way, Logan’s pronounced concern that the external approach entails a basic unfairness by treating similarly situated offenders differently. This concern warrants careful scrutiny.

B. Does the External Approach Promote Inequality?

Logan’s basic point about unequal treatment resulting from the external approach is that “[w]hen forum states defer to outcomes reached in foreign states with significant variations in substantive laws, punishments, and procedural rights, otherwise similarly situated individuals can be treated unequally.” To see how this works, consider two types of inequality Logan espies under the external approach. Logan writes:

The first [unequal treatment] involves immigrants from states with narrower registration eligibility criteria; they, unlike the immigrant from, say, South Carolina, will not be subject to registration because it was not required by the foreign state from which they migrated. The second arises when an offender in the forum state is not required to register as a result of being convicted of an offense (e.g., peeping), yet the newcomer is so required, again because of the idiosyncratic nature of the foreign state's registration law. Alternatively, the duration of registration can be made lengthier for newcomers if the forum state ties the newcomer's period of registration to the duration imposed by the state left behind. In each such situation, registration, with its direct and collateral burdens (including possibly community notification, with its litany of negative consequences), is driven by the geographic happenstance of where the foreign conviction occurred, leading to unequal outcomes in the forum state.

To be sure, unequal treatment of similarly situated offenders should give us pause -- as a normative and constitutional matter. But the unequal treatment resulting from adoption of the external approach isn’t necessarily “unwarranted” or “unfair” unequal treatment if it doesn’t involve offenders who are actually similarly situated. Logan’s first scenario compares immigrants from different states who arrive in the same new forum state; one is susceptible to more onerous registration requirements while another is not—merely because of where the foreign conviction occurred. This disparity is troublesome, according to Logan, as is the second disparity resulting between the immigrant offender and the native offender in the second scenario.

Both scenarios however present only the veneer of unfairness. Upon scrutiny, the unequal treatment dissolves simply by recourse to the very point about notice that Logan acknowledges elsewhere. In the case of the two immigrant offenders now in the forum state, it makes little sense to think they are similarly situated if they committed their offenses in different states against different sovereigns. The same holds for the comparison of the perpetrator of an offense in jurisdiction X to the perpetrator of the same offense in jurisdiction Y. These offenders are not similarly situated precisely because the predicate conduct was perpetrated against different sovereigns whose democratic institutions may legitimately issue different rules with different consequences. This matters because in a federal scheme of decentralized democracy, an offense, say, of drug possession, in state X may reasonably be regarded as having a different valence than those contemplating the criminalization of drug possession in state Y. (Of course we might not like all the resulting laws from the plural nature of the states, but this calls perhaps for increased constitutional regulation of criminal law legislation, not an abandonment of federalism as such.) Moreover, given the variety of ways in which similar acts committed in different states may reveal different attitudes about criminal propensities, there is further reason for thinking that the offenders in Logan’s two scenarios are not similarly situated—though of course, this would depend on the assumption that the offenders had knowledge of these varying penalties.

In short, to generate a legitimate inference of unwarranted disparity one has to treat differently two similarly situated perpetrators of the same offense in the same jurisdiction. Both of Logan’s two scenarios don’t present that prerequisite. Indeed, when a forum state effectuates the consequences that would be visited upon an offender had he remained in the foreign state—by adoption of the external approach—the forum state is actually serving the cause of equality because it ensures that similarly situated defendants convicted in the same jurisdiction endure the same kinds of consequences regardless if one of the offenders decides to up and go to another jurisdiction. More importantly, no unfairness or surprise to the offender can be claimed because he is (presumptively) on notice from the outset; he is simply receiving under the external approach what he would otherwise have received had he stayed in the foreign state.

C. Does the External Approach Undermine State Autonomy?

In addition to his concerns about widening penality and inequality, Logan also fears the external approach leads to the erosion of autonomy in individual states. This erosion of self-government occurs on account of the ossification effects resulting when states, through the external approach, “replicate temporally and geographically contingent aspects of substantive criminal law, punishment, and procedure.” Logan thinks these “frozen-in-amber” effects are more pronounced in jurisdictions employing the external approach because under the internal approach such “intergenerational drift” might be checked by the forum state’s own substantive rules and procedural requirements.

There are two reasons to hesitate before condemning these replication and ossification effects. First, as shown earlier, because the internal approach is not always less harsh and because criminal codes in the foreign state may be more “progressive,” the replication and ossification created by the external approach might not be bad for defendants or society.

Second, and more relevant to the autonomy erosion claim, there are two reasons states may see their choice of the external approach as an expression of their autonomy, rather than as a denigration of it. First, a state may view its choice of the external approach as saying to an offender something like: “if you made the choice to violate the criminal law of another state, we have a concern you might do so here as well, even though what you did there would not have been a violation here.” Thus, a state might self-consciously try to enhance its crime reduction strategy against specific threats by adopting the external approach. Second, notwithstanding its “right to act autonomously and independently, free of the constraining authority of other governmental units,” a state might adopt the external approach because it wants to see its norms adhered to when its offenders migrate to other states. If the state sees itself in an iterative process by which it believes that other states will reciprocate with adoption of the external approach, then its choice to embrace the external approach will make sense. To illustrate: State X might be willing to give effect to State Y’s laws to offenders whose crimes were prosecuted in State Y if State X thinks that State Y (or States A through W) will adopt and abide by the external approach. That’s because State X believes that in subsequent cases, those states will give effect to State X’s laws to former X-convicted offenders who migrate to these other states.

Indeed, State X might try to persuade other states to adopt an external approach so that they give effect to State X’s legislative views on offenders previously convicted in State X. Though they have no power to mandate the extraterritorial application of their laws, the states employing the external approach might try to convince the “internal approach” states that they are acting as “free-riders.” They are free-riders because internal approach states have their laws apply in their own jurisdiction to indigenous and immigrant offenders and they also have their laws apply to their own former citizens who migrate to external approach states. Without a rule mandating one approach or another, internal approach states are able to enjoy a kind of law-hoarding, thereby undermining norms of reciprocity.

There is a solution available to bring this “game” to equilibrium: states that care about this problem could use a bifurcated strategy. The courts in the forum state could apply the external approach to offenders from other external approach states while using the internal approach against offenders migrating from internal approach states. But the fact that such a strategy is not used indicates that this unfairness is either deemed relatively insignificant or that the unfairness has not been made obvious to relevant policymakers.

D. Does the External Approach Discourage Democratic Experimentalism and Jurisdictional Competition?

Logan concludes his critique of the external approach by contending that states that adopt the internal approach are better able to serve as “stalwarts of fifty-labs federalism.” I find this claim puzzling. To begin with, a state adopting the external approach is at least equally able to convey its respect for fifty-labs federalism precisely because it may doggedly apply its own laws to offenders who commit crimes in that state while at the same time demonstrating its respect for the equal dignity of its sister states by implementing the laws of its sister states on their migrant offenders. Pace Logan, the external approach poses no real jeopardy to the spirit of democratic experimentalism—after all, the proportion of migrant offenders is likely to be small compared to the number of indigenous offenders, so lawmakers won’t likely be deterred from trying to undertake criminal law innovations to see how they work.

Indeed for the same reason, Logan’s fear that the external approach prompts a slippage in democratic accountability seems remote. How many instances are there where someone convicted of a weird crime in another state -- Logan’s examples are adultery and peeping -- has that offense later serve as a predicate to enhanced sentences or registration requirements in a forum state adopting the external approach? My guess is not that many -- unfortunately, Logan’s article (quite reasonably) doesn’t provide the empirics. But even if it were a non-trivial number, calling that result, as Logan does, “stealth legislation” seems inapposite. After all, no citizens of the forum state will face penalty enhancements for such conduct if that conduct is committed in the forum state.

As long as the forum states citizens are free to engage in that predicate conduct, then virtually no risk to Alexander Hamilton’s vision of the states competing for the “people’s affection” materializes--because people are still able to make informed choices about where to live ex ante, that is, before any crime is committed. If I want to move away from a state that makes peeping a felony, I can do so at no penalty if I haven’t committed an offense. But Logan thinks people should be able to commit an offense and then escape (some of) the consequences of that conduct by moving to an “easier” place to live. Certainly, offenders who serve their sentence and complete all their conditions of release should enjoy the fruits of mobility associated with the American religion of self-reinvention. But by what moral rights do they merit a free roaming pass prior to their release from the criminal justice system? There’s no evidence adduced by Logan that this is the kind of jurisdictional competition Hamilton or other federalists supported. Moreover, to the extent that internal approach states end up being harsher on defendants, then that too will deter migration on the margins, thereby depriving “prospective states” of “such persons’ talents and resources.” At the level of abstraction Logan has pitched this inquiry, the choice of internal approach over external approach can often cut both ways.

Finally, to the extent anyone in an external approach state is troubled by the introduction of what Logan calls “stealth legislation,” she might take comfort in knowing that her own state’s “weird” legislation is being given effect in other external approach states. Logan correctly worries that the external approach might give extended effect to laws like the ones invalidated in Lawrence v. Texas. But that’s just one side of the coin. The flip side is that progressive states might be criminalizing marital rape or making it easier to prosecute date rape, and through the external approach, they are seeing norms shift in “better directions.” And in both situations, criminal legislation is policed, albeit too weakly, by the Constitution. In the end, there is a quid pro quo going on among the external approach states—one that Logan appears reluctant to acknowledge. And for those states that are still worried about the injustices potentially worked by replicating weird laws of other states, they have yet another strategy available to them: to employ the external approach generally while simultaneously carving out specific safe harbors for particular conduct. On this view, a legislature would tell its courts to exclude from consideration convictions arising from, say, consensual sodomy or recreational drug use, or whatever conduct the legislature deems worthy of protection.

III.

In reviewing Logan’s multiple concerns about the external approach, one might be tempted to view them as fragments of a larger skittishness toward the work of democracies in the realm of criminal law politics, and the crisis of overcriminalization produced therefrom. To be sure, there is a basis for fearing incessant overcriminalization. But the claims of pernicious democratic pathologies in criminal law politics are also prone to exaggeration, as Professor Darryl Brown has recently demonstrated. And to the extent the crisis of overcriminalization is real, it probably does not make much sense to base much optimism for its amelioration on the correct choice between the internal or external approach—simply because there are far more direct measures available.

In any event, the choice between the internal approach and the external approach is not an easy one, and Logan’s research and arguments have done a tremendous service in bringing to light the various challenges associated with creating bridges among our various criminal justice systems. At the very least, I hope this Response has both shed further light on the topic of conversation invaluably provoked by Professor Logan and shown that the case against the external approach is not as forceful as it might seem at first blush.

Posted by Administrators on August 23, 2006 at 12:23 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink

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Comments

I'm grateful to both Jim and Louis for their generous and thoughtful comments. I suppose I shouldn't be surprised that some readers would buy Wayne Logan's view that the external approach creates disparities; if someone as sharp as Wayne thinks X, surely some others will think X also. The dispute regarding whether the sentence enhancement or registration requirement in the new state is "unwarranted" depends on what one's baseline is. I would think the offender's move to a new state would not be a sufficient moral reason to shift one's baseline in terms of what punishment or consequences he can reasonably expect. Otherwise, that would simply encourage people to commit crimes in one state and move to another that had more lenient sentencing. But to my mind, the offense was against the sovereign in the former state, not the current "forum" state. Perhaps using the term "notice" is imprecise, then, but what I'm getting at is the idea that there's a reasonable connection between the collective victim of the crime (the state) and the decisor about what punishment the offender shall receive. Applying the internal approach severs that connection, and in doing so, disrupts the norms of equality that would otherwise apply to similarly situated offenders within the original foreign state in which their similar crimes existed. In short: regardless of which approach you choose, there's an inequality. The question is which inequality is more justifiable. For the reasons I mentioned above, I think the external approach is the better way to go here, at least in this respect.
Jim's point about involuntary migrations to other states raises an interesting question. I could see modifying my position if the foreign state actually caused the migration to the other state. But it's hard to imagine the circumstances in which, say, Florida requires me to move to NY or some other state. Absent the state being the proximate cause for the move to the new forum state, I can't see why the motivation for the offender's move should play a role here though.

Posted by: Dan Markel | Aug 28, 2006 3:41:24 PM

Like Mr. Green, I agree that your analysis is excellent. Also like Mr. Green, however, I am troubled by the concept of presumptive notice as a justification for external approach you describe.

To me it seems that, in general, the concept of notice is a legal fiction. An indispensable legal fiction to be sure, but a legal fiction nonetheless. Notice is a tool used to solve problems that could not be solved "properly" without a tremendous waste of judicial economy. The process of closing an estate is a prime example. How often do people actually read legal notices in a newspaper concerning an estate? What constitutes a crime is embodied in statute, but how often do people check the statutes to guide their actions? In these two situations, of course, notice is needed to solve the tricky problems involved in closing an estate and having criminal codes that cannot be evaded by simple ignorance.

The situation here, by contrast, does not contain such problems. It would be actually easier for a judge to apply *their own law* rather than a foreign state's. Therefore, because no problems exist here that we need a legal fiction to solve, I disagree with the concept of using presumptive notice as a justification for the external approach.

Also, I think that by "simplifying" the notice that offenders need to maintain, you do them no great favor. The re-offender's actual knowledge, in all likelihood, does not change at all.

This is my first post, and I would like to say that this is an excellent site. I look forward to reading more of it in the future.

Posted by: Louis C. Walker | Aug 26, 2006 9:52:19 AM

First, excellent analysis. But I am not entirely comfortable with your critique of his claim that the external approach promotes inequality. First, I think he tacitly acknowledges your argument when he says *otherwise* similarly situated. The basis for your argument seems to be the presumptive notice of the laws under which an individual would be punished warrants unequal treatment in foreign jurisdictions. I will not dispute that an individual should not *expect* to escape punishment of which he was on presumptive notice simply by leaving the jurisdiction. Expectations aside, however, immigrants from harsh state A now residing in less harsh state B suffering disparately from their now fellow citizens of state B still stikes me as unfair. Being a student of yours I am somewhat familiar with the importance of notice in determining culpability from the retributivist perspective. I am just not sure why, in this context, the fact of prior notice trumps the negative impacts of the disparate treatment.


Another thought that occurred to me is how far does presumptive notice extend. Certainly individuals are not presumptively on notice of what the future holds including when and where they may be required to move to sustain their livelihood, or care for a family member, or any other number of unexpected but legitimate events that may require relocation to another jurisdiction. Thus, where individuals are not trying to escape their punishment by moving but are forced to for legitimate reasons the disparate treatment seems less warranted. Two individuals from two different states that punish the same conduct differently who move to the same third state that perhaps does not punish the conduct at all but uses the external approach will now suffer not only disparately as to each other but also as to natives of the third state. Perhaps presumptive notice is enough to justify this but it still makes me uneasy even if I can't clearly articulate exactly why.

Posted by: Jim Green | Aug 25, 2006 8:11:41 AM

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